The Acrobatic Driver: A Reprise


In the case of the acrobatic but reckless driver, Problem IV-9, at page 248 above, suppose P offers W3 to testify that he worked at a gas station on the corner of Walden and Thoreau Streets, that he has serviced B's car and knows it is a standard-shift automobile, and that in all the times he saw B drive through the Walden/Thoreau intersection, he never saw B come to a full stop at the stop sign. Rather, B always would spurt through the intersection without downshifting to first gear.

Is W3's testimony relevant? Is it admissible? What is the difference between W3's proposed testimony and W1's and W2's proposed testimony? Would your decision as to whether any of the witnesses' testimony should be admitted be affected by the presence or absence of eyewitnesses to the collision between B's car and A? Should it be?


Repetition of an act does not in itself constitute a "habit.'' But merely because the various similar occurrences do not constitute proof of habit does not mean that they are automatically inadmissible. In each case, one must ask is the evidence relevant? If it is relevant, then is it evidence of character because of its generality, or of similar acts that reveal a specific disposition that manifests itself in a narrow way? If the latter, how would the admissibility of the evidence be decided under Rule 403?

If the act does not amount to a habit, it might yet fall into a middle ground of prior similar acts that neither clearly qualify as admissible habit under Rule 406 nor clearly are inadmissible under the general propensity rule of 404(a). What then? There would seem to be no other choice but to decide the issue of the admissibility of similar acts that fall into this middle ground on a case-by-case basis under Rule 403.

In the context of Problem IV-12, in which there is apparently very little other evidence of causation and no serious potential for prejudice stemming from the nature of the acts in question, the evidence of the prior instances in which S caused fires by falling asleep while smoking should be admitted, although a trial judge who refused to admit this evidence would undoubtedly not be reversed.

In applying Rule 403, it sometimes happens that the nature of prior similar acts (whether or not they amount to habit) may raise substantial problems of prejudice. Does this occur in the case of the careless smoker?

What about Pothead? P's practice of smoking marijuana before going to movies concerns a specific pattern of behavior, not offered for purposes of showing P's general character. The proof shows a particular propensity to act in a given way in a given context. For this reason the evidence may not be excluded by the general propensity rule of FRE 404(a), but whether it is admissible is another question.

P's practice of smoking marijuana before going to movies is not easily described as a habit. There is a volitional aspect to smoking marijuana that resists the "habit'' label, which, in this context at least, suggests "addiction.'' The evidence is, therefore, not clearly covered by Rule 406.

Thus, this is another example of evidence of similar acts that falls in the middle ground between character and habit, the admissibility of which must be determined under Rule 403.

There would not seem to be a serious problem of "waste of time'' in the proof of these similar acts (and that is often the most serious problem). However, there is a substantial risk here that the factfinder would decide the case based on a prejudice against pot smokers and not on the basis of the best assessment of what actually happened. Either way, do you think that the trial judge will be reversed however she rules?

What about Daredevil? P's evidence that D has been cited eight times in two years for going through red lights is offered to show that he has a propensity to run red lights and therefore that it is more likely that he ran the red light in this case. This is a fairly specific behavior pattern, quite different, for example, from proof that D was negligent or reckless in a variety of ways while driving. Compare the Phinney and Farnsworth cases again.

Compare Example 1

D was stopped for

running red lights D has a propensity D ran the red light

eight times in to run red lights in this case

two years

with Example 2

D was ticketed for

going 80 MPH D has a propensity D ran the red light

D was cited for drunk to drive recklessly in this case


D drove with his feet

In the second example in the chart there is a wide variety of behavior that manifests the character trait; thus the propensity is general. In the first example the propensity is much more specific, and therefore the proof based on the similar act logic is much more probative.

Is the propensity specific enough to take it out from under the general propensity rule of FRE 404(a)? The range from the general to the specific is obviously spectral: There is no bright line of demarcation. General propensity is at one end; habit is at the other. There is considerable variety possible in the contexts and conditions under which red lights could be run, and no contention that D automatically runs all of them. It is easy to imagine an even more specific propensity (i.e., "habit'') with respect to running red lights.

The evidence of D running red lights is an example of evidence in the middle ground between character (general propensity) and habit (a very specific propensity), the admissibility of which is determined neither by Rule 404(a) nor by Rule 406, but which must be determined under Rule 403.

In making the Rule 403 balance, the trial judge should weigh the following:

1. There is a risk that the jury will find against D simply because the three accidents he has been in show that he is a menace on the road, regardless of whether he was the one at fault in this one.

2. Eight citations in two years show a tremendous penchant for running red lights; if D was cited eight times there must have been additional hundreds of times when he was not caught, and neither accidents nor being caught deters him.

3. The proof of the prior acts can be made with the citations, which is both efficient and reliable.

Finally, what about the acrobatic driver? How one packages evidence may well determine whether the evidence will qualify as habit evidence. W3's testimony is highly relevant and concerns sufficiently "habitual'' behavior to be admitted as evidence of habit. The testimony shows that B invariably went through the intersection without stopping. The testimony implies that this behavior was so regular that B never stopped.

The difference between this testimony and the testimony of W1 and W2 is that this testimony is narrower, validated by more observations, and more specifically relevant because it concerns the same location as the accident and deals directly with not stopping at the sign. This specifically may mean the difference between admission and exclusion. Note in the next case how careful organizational policies and procedures (not to mention good lawyering) can turn Rule 406 into an effective shield against liability.

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